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Cable Television and the Aereo Case – Then and Now

The Supreme Court will soon confront whether Aereo’s service – which affords subscribers access to over-the-air television signals through the use of dime-sized, customer-specific antennas and remote digital video recorders – infringes the Copyright Act’s public performance right. In endorsing the Second Circuit’s decision holding that Aereo does not infringe, some advocates have suggested that such disruptive digital age technology is well beyond what Congress contemplated when it drafted the “Transmit Clause” of the public performance right nearly 50 years ago. Our exploration of the history indicates otherwise.

The drafters of the Copyright Act of 1976 had greater foresight than the Second Circuit recognized. As the 1965 Supplementary Report of the Register of Copyrights emphasizes, “it is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication, may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences. Even when these new media are not operated for profit, they may be expected to displace the demand for authors’ works by other users from whom copyright owners derive compensation.”

The following year, Congress explained its intent in crafting the public performance right to cover transmissions of performances “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Its 1966 report notes that liability would arise “whenever the potential recipients of the transmission represent a limited segment of the public, such as...the subscribers of a community antenna television service.” It noted that the “same principles apply...where the transmission is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public” – language that comes eerily close to describing Aereo’s service.

It is difficult to imagine the drafters not considering Aereo to fall comfortably within their conception of a public performance right, especially when considered in light of the drafters’ stated intention that the statute be interpreted broadly so as protect against the “real danger” of confining the “scope of the author’s rights on the basis of the present technology” in the face of even “unforeseen technical advances.”

When Congress’s development of the retransmission compulsory license is added to the mix, the case for liability becomes airtight. After 1966, the governing law affecting cable television evolved considerably. After the Supreme Court determined that cable television services do not implicate the copyright owner’s rights, Congress added Section 111 as part of its stated intention to legislatively reverse the Court’s Teleprompter and Fortnightly rulings. This provision establishes a detailed compensation regime whereby cable services are charged for sending over-the-air signals to their subscribers. Retransmission of those signals absent compliance with the provisions set forth in Section 111 or authorization from the copyright owner constitutes copyright infringement. Over the ensuing decades, Congress has cemented this proposition time and again.

When taken together, the text, structure, and legislative history of the 1976 Act establish that Congress intended its public performance right to reach the Aereo service.